In the Matter of an Application for Enforcement of Human Rights pursuant to s57 of The Constitution and In the Matter of an Application by Kunzi Waso [1996] PNGLR 218

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 07 May 1996
• Citation: [1996] PNGLR 218
• Court: National Court
• Year: 1996
• Judgement Number: N1430

Full Title: In the Matter of an Application for Enforcement of Human Rights pursuant to s57 of The Constitution and In the Matter of an Application by Kunzi Waso [1996] PNGLR 218

National Court: Jalina J

Judgment Delivered: 7 May 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS PURSUANT TO SECTION 57 OF THE CONSTITUTION;

AND IN THE MATTER OF AN APPLICATION BY KUNZI WASO

Lae

Jalina J

7 March 1996

11 March 1996

13 March 1996

18 March 1996

20 March 1996

7 May 1996

CONSTITUTIONAL LAW — Constitution s 57 — Enforcement of rights and freedoms — Prisoner — Constitution s 36 — Freedom from inhuman treatment — Protection of the law — Constitution s 37 (1) — Harsh or oppressive treatment — Constitution s 41 — Constitution s 46.

DAMAGES — Awards — Breach of human rights provisions of Constitution — Joint tortfeasors — Whether damages should be awarded against employees of the State responsible for breach of constitutional rights.

Facts

The applicant brought proceedings in person for enforcement of constitutional rights under s 57 of the Constitution claiming a breach of s 36, s 37 (1), s 41 and s 46. The applicant alleged that the breaches had taken place near the main gate reception area at Buimo Corrective Institution and he identified warders at the prison as having committed the breaches. The evidence indicated an assault on the applicant by warders most of whom did not challenge the applicants evidence of assault.

Held

The applicant having established a breach of rights, damages should be awarded for the severe assaults inflicted on the applicant. A portion of the damages awarded should be paid by the warders involved on the basis that the State, as their employer, had not authorised any breach of rights and that making an award against the individuals involved might reduce the frequency of such conduct by policemen warders and others.

Cases Cited

Kofowei v Siviri & Ors [1983] PNGLR 449

Simbago v The East Sepik Provincial Police Commander and The State (Hinchliffe, J unreported Judgment, 25 February, 1994)

Counsel

Applicant in person

Respondents in person

7 May 1996

JALINA J: This is an application pursuant to s 57 of the Constitution whereby the applicant claims that his rights guaranteed under the Constitution have been infringed. He has completed and filed two "Application for Enforcement of Human Rights and/or Freedom" forms both of which are dated 30th January 1996. In the first of the two forms he claims breaches of rights and freedom from inhuman treatment and right to the protection of the law whilst in the second form he claims two additional breaches namely protection from acts which are otherwise legal but are harsh or oppressive and freedom of expression. He has not elected which of those two applications he wished to prosecute on. However, to the extent that his second application form contains two additional breaches it would appear to me that his second application has superseded the first application. I therefore propose to deal with the second application on that basis.

The Constitutional provision which the applicant alleges were breached are: s 36 (Freedom from inhuman treatment), s 37 (1) (Protection of the law), s 41 (Proscribed Acts) and s 46 (Freedom of Expression).

The breaches are alleged to have been committed near the main gate reception area of the Buimo Corrective Institution and the persons alleged to have committed such breaches are warders Benedict Magiten, Martin Arorai, David Suagu, Boas Bukal and John Bully. The Jail Commander, of Buimo Corrective Institution, Samson Jaro, has also been named in some of the documents that have been filed but in view of evidence before me which show that he was on recreation leave at the time of the alleged breaches of Constitutional rights, I find at the outset that he is not liable.

From the evidence, including statements filed by the applicant and his witnesses, it appears that the applicant was assaulted on 25th and 26th January 1996 respectively. On the 25 January he was assaulted by Warders Benedict Magiten, Martin Arorai, Malai Ndrohas, Deni Tiki and Sergeant Boas Bukal over his refusal to co-operative with them in removing a necklace on which he had his keys. He was surrounded and kicked with work boots and also punched. It appears that the applicant did not receive any injuries during this assault.

The assault on the 26th January appears to have taken place through a misunderstanding of a swear word for female genitalia which the applicant had directed at a fellow prisoner Sarius Yawas on 25th January when Sarius asked the applicant what had happened to him (the applicant) as he was returning to cell No. 5 after being assaulted by the above warders. An officer, Thomas Cain who was with Sergeant Henry Marita at the time heard and asked the applicant if he had used the above swear words to warders. The applicant explained to them and they let him go but it seems that the warders still appear to have felt on the 26 January that the above swear word was directed by the applicant at them; hence the assault that morning. This is clear from what Benedict Magiten is alleged to have shouted to the applicant as he caused the...